(concurring in part and dissenting in part). In the matter of People v Goecke, I concur with the majority with respect to the procedural issue only. Regarding the substantive issue, I disagree with the majority’s rationale and conclusion. I believe that the *474evidence was insufficient to bind defendant Goecke over on the charge of second-degree murder and to convict defendant Baker. I concur only in the result reached by the majority on the substantive issue in Hoskinson. I dissent from the rationale and result it reaches on the substantive issues in Goecke and Baker.
I. PEOPLE v GOECKE: ANALYSIS
A
The issue in Goecke is whether the district court abused its discretion by not binding over defendant on the second-degree murder charge. The elements of second-degree murder are: (1) a death, (2) caused by the defendant, (3) with malice, and (4) without justification or excuse. People v Bailey, 451 Mich 657, 668-669; 549 NW2d 325 (1996).
In People v Woods, this Court recognized that the word “malice” is arcane, confusing, and potentially misleading. 416 Mich 581, 625-626; 331 NW2d 707 (1982). We attempted to clarify the concept by requiring trial courts, when instructing on second-degree murder, to explain it in terms of a state of mind. Id. at 626-627. Malice is present if a defendant has one of three states of mind. The first two are not at issue in this case. They are: (1) the intent to kill, and (2) the intent to inflict great bodily harm. Id. at 627.
When describing the third type, this Court has used varying terminology. On one hand, we labeled it as the “wanton and willful disregard of the likelihood that the natural tendency of a [defendant’s] behavior is to cause death or great bodily harm.” People v *475Aaron, 409 Mich 672, 728; 299 NW2d 304 (1980).1 Alternatively, we have stated that it is “the intent to create a very high risk of death or great bodily harm with the knowledge that death or great bodily harm is the probable result.” People v Dykhouse, 418 Mich 488, 495; 345 NW2d 150 (1984).2
The prosecution urges this Court to reaffirm the definition in Aaron and reject the definition in Dykhouse. It argues that, under the definition in Aaron, it is not necessary to determine whether the defendant subjectively knew that his actions were wilful and wanton. He need not have known that the natural tendency of the behavior was to cause death or great bodily harm. Rather, one could consider whether a reasonable person would believe that the defendant’s conduct created an unreasonable and very high degree of risk of death or great bodily harm.
The law has been unclear concerning whether a defendant must have been subjectively aware of the degree of risk his conduct created to be charged and convicted of second-degree murder. This Court has defined the third form of malice in both objective and subjective terms. Aaron and Dykhouse, supra. Today’s opinion ought to offer the bench and bar guidance on when it is sufficient to charge a defendant with om, causing death, and when a second-degree murder charge is appropriate. To accomplish this, we would have to determine whether the subjective or *476objective definition of the third form of malice applies.
Although the majority states that it does not reach the issue, I contend that it does and that, by default, it adopts the objective definition as stated in Aaron. See ante at 465, n 26. The majority states that the prosecution in Goeeke was required to prove that probable cause existed to bind over defendant under the objective standard of Aaron. See ante at 470. It specifically rejects the line of California cases that defines second-degree murder in terms of subjective intent. See id. at 467, n 31. The standard for malice recited throughout the majority opinion suggests the adoption of an objective standard.
I would reject the argument that an objective standard is proper. Under the definition recited in Aaron or Dykhouse, a defendant must be subjectively aware of the very high risk that his conduct creates in order to be convicted of murder.
Michigan courts long have held that murder permits an inference of a subjective awareness that one’s act is dangerous and will probably or naturally result in death or great bodily harm. As early as 1874, this Court held that, to be convicted of murder, an accused must have an intent the “equivalent in legal character to a criminal purpose aimed against life.” Wellar v People, 30 Mich 16, 19 (1874).
In Aaron, supra, we abolished the common-law felony-murder rule. One reason was that it punished all homicides committed during another felony, whether intentional or unintentional, without proving a relation between the homicide and the defendant’s state of mind. Id. at 708. We stressed that the most basic principle of criminal law is that criminal liability for *477causing a harm is not justified absent some culpable mental state regarding that harm. Id. See also Dykhouse, supra at 511 (Cavanagh, J., dissenting).
Legal scholars have emphasized that a defendant must be subjectively aware of the high probability of the risk before a conviction for second-degree murder can stand. As one stated:
It is a question of how much fault should be required for murder; for one who consciously creates risk is morally a worse person than one who unconsciously does so, though each of the two persons may constitute an equal danger to his fellow man. On balance, it would seem that, to convict of murder, with its drastic penal consequences, subjective realization should be required. [LaFave & Scott, Criminal Law (2d ed), § 7.4(b), p 621.]
Other legal scholars commented:
In other words, the intent to do an act in wanton and wilful disregard of the obvious likelihood of causing death or great bodily injury is a malicious intent. [Perkins & Boyce, Criminal Law (3d ed), ch 2, § 1, p 60.][3]
I agree with these assessments. I would hold that, in order for the prosecution to secure a bindover on a second-degree murder charge, the prosecutor must submit evidence from which it can be inferred that (1) the defendant was subjectively aware that his *478action was dangerous and (2) the probable result or natural tendency of the act was to cause death or great bodily harm.
B
I disagree with the majority that defendant Goecke should have been bound over on a second-degree murder charge. The majority essentially adopts the prosecutor’s assertion that the fact Goecke was driving while intoxicated should have been sufficient, standing alone, to establish probable cause of malice. The prosecution relies on People v Lardie,4 for the proposition that causing an accident resulting in death while driving when drunk is grossly negligent as a matter of law. It argues that, because the difference between the necessary culpable mental states is one of degree, the case should always be decided by the trier of fact.
It is true that the difference between the risk involved for involuntary manslaughter, where gross negligence is the standard, and second-degree murder is one of degree. An unreasonable risk that is also a high degree of risk may be termed gross negligence. LaFave & Scott, supra, § 7.4(a), p 618. For murder, the risk of death or bodily injury is a “very high degree of risk.” Id.; Dykhouse, supra at 495-496. However, the applicable mental state is a distinguishing feature that is not just a matter of degree. Gross negligence requires an “omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another.” Lardie, supra *479at 252, citing People v Orr, 243 Mich 300, 307; 220 NW 777 (1928). Therefore, for gross negligence, the standard is an objective one. On the other hand, as noted above, the state of mind of the defendant is a key element of malice. Consequently, I would reject the prosecution’s argument that defendant can be bound over on a second-degree murder charge without proof of his state of mind.
By effectively adopting an objective standard today, the majority eliminates any real difference between the proof required for OUIL causing death and that required for second-degree murder. When the Legislature enacted the OUIL causing death statute, it presumed that driving while intoxicated is gross negligence as a matter of law. Lardie, supra at 251. Thus, the prosecution need not provide further proof of gross negligence when bringing an action under the act. Id. It must prove, simply, that the defendant voluntarily decided to drive and did so after knowingly consuming alcohol. Id. As we stated in Lardie: “[C]onsistent with the Legislature’s decision to presume gross negligence as a matter of law and its desire to deter intoxicated driving, the Legislature must reasonably have intended that the people prove a mens rea by demonstrating that the defendant purposefully drove while intoxicated or, in other words, that he had the general intent to perform the wrongful act.” Id. at 256.
It can be inferred from the majority opinion that this general intent element is the same element required for second-degree murder. In essence, the majority finds that the intent to drive while intoxicated is all that the prosecution need show to establish the malice required for second-degree murder. On *480the basis of this holding, I discern no difference between the mens rea requirement this Court stated in Lardie for OUIL causing death and the majority’s requirement for second-degree murder.
Moreover, the holding of the majority renders the causation requirement for OUIL causing death articulated in Lardie indistinguishable from the majority’s objective test. Lardie held that, to prove the causation required for OUIL causing death, the “people must establish that the particular defendant’s decision to drive while intoxicated produced a change in that driver’s operation of the vehicle that caused the death of the victim.” Id. at 258. “It is the change that such intoxication produces, and whether it caused the death, which is the focus of this element of the crime.” Id., n 47. The majority’s position articulated here is entirely inconsistent with this Court’s position in Lardie and renders the OUIL causing death statute a mere redundancy.
c
Finally, the prosecution argues that, even if driving while intoxicated is not sufficient to establish probable cause of malice, there were sufficient “aggravating circumstances” in this case to support a bindover.
As indicated above, I would require that the prosecution submit evidence from which it can be inferred that defendant knowingly acted in a wanton and wilful manner. The prosecution should have to show that the defendant knew that the natural tendency of his actions would cause death or great bodily harm.
This requirement comports with Justice Boyle’s concurrence in Dykhouse, supra, where she stated *481that if: “the defendant knowingly created a very high risk of death with knowledge of its consequences, but that the defendant did not intend to cause the victim’s death, then [the jury] could not find the defendant guilty of first-degree premeditated murder.” Id. at 517, n 3 (emphasis added). That is, the defendant could not be found guilty of the specific intent crime of first-degree murder unless the defendant intended to cause death. As Justice Boyle stated: “The mental element for first- and second-degree murder is the same: the act which causes death must be accompanied by a life-endangering state of mind. It is the additional element of premeditation and deliberation that requires a specific intent to kill for first-degree murder . . . .” Id. at 517. To be convicted of second-degree murder, the defendant need not intend death, but he must knowingly create a high risk of death and have knowledge of its consequences.
Until today, this Court had not determined under what circumstances intoxicated drivers can be bound over and convicted on second-degree murder charges. However, other jurisdictions have handled the issue and have established some parameters that are helpful to consider.
In Essex v Commonwealth of Virginia,5 the defendant was driving a truck southbound on a two-lane highway. The truck passed cars by crossing a solid centerline. This continued for six miles. He passed through an intersection on a red light, nearly colliding with a tractor-trailer. A mile and a half farther, his truck collided with a northbound pickup truck, killing *482three of its passengers. The defendant’s blood-alcohol content was 0.144 percent.
The court held that there was insufficient evidence to sustain a second-degree murder conviction. It held that the jury could only speculate whether the defendant had a malicious purpose in driving as he did.
In State v Jensen,6 the defendant was intoxicated and drove, weaving in and out of traffic. His car struck another vehicle, killing the occupant. The court held that the fact that defendant was driving while intoxicated was not sufficient, in and of itself, to support a finding of malice. It stated:
Without some circumstances showing malevolence other than the doing of a wrongful act toward another, the non-malicious crime of common-law manslaughter is not converted into the malevolent crime of murder at the common law. We do not say there may not be crimes arising even to first degree murder, committed by the instrumentality of an automobile. In that event, the instrumentality of its commission is a matter of no consequence where the evidence shows the ingredients of murder at the common law are present. [Id. at 445.][7]
In Griffin v State,8 the defendant left a nightclub where she had been drinking beer and got behind the wheel of her automobile. While driving, she hit a police officer who was talking to a driver whom he had stopped along the roadway. The defendant’s vehicle stopped 590 feet from the point of the impact and *483left no skid marks. It was determined that the defendant’s blood had a 0.13 percent alcohol content.
The court noted that there was evidence that the defendant had been driving at a high rate of speed. By her own admission, she was incapable of observing her side of the road. Her companion warned her to watch the vehicles on the shoulder. When she brought her car to a stop, she did not attempt to assist the person whom she had been told that she had struck. Looking at these facts, in addition to her intoxication, the court found sufficient evidence to sustain a second-degree murder conviction.
In People v Watson,9 the defendant consumed a large amount of alcohol at a bar. He entered an intersection on a red light and avoided a collision by skidding to a halt in the middle. The defendant then drove away at a high rate of speed and struck a car in another intersection, killing two of its occupants. The speed limit was thirty-five miles an hour. Expert testimony indicated that the car’s speed immediately before the brakes were applied was eighty-four miles an hour. At the point of impact, the defendant’s speed was approximately seventy miles an hour. One hour after the collision, the defendant’s blood-alcohol content was 0.23 percent.
The court noted that malice can be found where a person, knowing that his conduct endangers another’s life, nonetheless acts deliberately with conscious disregard for that life. This differs from manslaughter, because malice “contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is *484absent in gross negligence.” Moreover, a finding of gross negligence is made by applying an objective test: If a reasonable person in the defendant’s position would have been aware of the risk involved, then the defendant is presumed to have had such awareness. “However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.” (Emphasis in the original.)
The court in People v Watson stated that malice may be found when a defendant (1) does an act with a high probability that it will result in death and (2) does it with a base antisocial motive and with a wanton disregard for human life. Id. at 300. Under that definition, the court found sufficient evidence to bind the defendant over on a second-degree murder charge.
From these cases, one may draw several conclusions. First, the requisite mental state for second-degree murder may not be inferred solely from the fact that a defendant drove while intoxicated. Death or great bodily harm is not the natural tendency or probable result of drunk driving. See also White, Drunk driving as second-degree murder in Michigan, 41 Wayne L R 1433, 1447 (1995).10
Next, driving while intoxicated, coupled with reckless driving, can support a second-degree murder bindover and conviction. One may infer from certain evidence that an intoxicated driver is subjectively *485aware that his actions will probably result in death or great bodily harm. Numerous factors can be taken into account. Some are the time of day, length of the trip, speed traveled, route taken, recklessness of the driving, the defendant’s actions following the accident, degree of intoxication, and the defendant’s drunk driving history. See White, supra at 1461.
I disagree with the majority that, by adopting a subjective approach, voluntary intoxication would be a defense in these cases. Any claim that intoxication can negate the defendant’s subjective awareness should be rejected. Second-degree murder is a general intent crime, to which intoxication is not a defense. People v Langworthy, 416 Mich 630; 331 NW2d 171 (1982). A subjective awareness element in second-degree murder cases does not create a specific-intent crime. To be subjectively aware of the consequences of one’s actions is not the same as specifically intending to cause death.
Today, this Court essentially adopts an objective standard that could result in all drunk driving cases causing death being submitted for trial on second-degree murder charges. The prosecution has the discretion to bring charges it deems appropriate. On the basis of the majority opinion, there is little to prevent the prosecutor from charging every defendant allegedly causing such an accident with both second-degree murder and operating a motor vehicle while under the influence of intoxicating liquor, causing the death of another person, MCL 257.625(4); MSA 9.2325(4).
In the instant case, I would find that the district court did not abuse its discretion in refusing to bind *486Jason Goecke over on the second-degree murder charge.
The magistrate’s duty is clearly established by statute. MCL 766.13; MSA 28.931.
If it shall appear to the magistrate at the conclusion of the preliminary examination either that an offense has not been committed or that there is not probable cause for charging the defendant therewith, he shall discharge such defendant. If it shall appear to the magistrate at the conclusion of the preliminary examination that a felony has been committed and there is probable cause for charging the defendant therewith, the magistrate shall forthwith bind the defendant to appear before the circuit court of such county, or other court having jurisdiction of the cause, for trial.
To establish probable cause to bind over a defendant, the prosecutor must submit evidence on each element of the crime charged or evidence from which the elements can be inferred. People v McBride, 204 Mich App 678, 681; 516 NW2d 148 (1994). A magistrate should not dismiss a charge merely because some of the evidence is conflicting. People v King, 412 Mich 145, 153-154; 312 NW2d 629 (1981).
Even if evidence is submitted on each element of the offense, the magistrate’s job is not to automatically bind over. The magistrate is to review the whole matter. Where satisfied that there was insufficient evidence either that the offense charged was committed or that the defendant was the one who committed it, the charges must be dismissed. Id. at 154.
In this case, the evidence at the preliminary examination revealed that defendant drove his automobile while intoxicated, drove above the speed limit, ran a red light, and hit another vehicle. There was no evidence that defendant became subjectively aware that *487Ms actions would probably result in death or great bodily harm.
Nor does Ms statement after the accident, admitting that he was drunk and that he was speeding, provide evidence of Ms state of mind. Defendant’s awareness at the time the accident occurs, not after the fact, is what must be determined. MicMgan law requires that there be umty between the act and the defendant’s state of mind. People v Patskan, 387 Mich 701, 714; 199 NW2d 458 (1972).11
Here, defendant admitted that he was going too fast and stated, “I know I’m drunk.” There was no umty of state of mind and act that would permit a finding of malice. Under the facts presented, I would not conclude that the district court abused its discretion in refusing to bind over the defendant on a second-degree murder charge, after finding insufficient evidence of malice. I would affirm the decision of the Court of Appeals.
I would find that, even under an objective standard, Goecke’s actions do not support a second-degree murder charge. His speeding and running a red light caused the decedent’s injury, not the fact that he was intoxicated. Under the majority opimon, anyone who is speeding, runs a red light, and causes an accident resulting in death can now be charged with second-degree murder. I do not agree with the majority that a reasonable person would necessarily know that the natural tendency of these actions would result in death or great bodily harm. Even viewing Goecke’s *488actions objectively, I would not find sufficient evidence to support a second-degree murder charge.
n. PEOPLE v BAKER. ANALYSIS
Unlike Jason Goecke, defendant Richard Baker was tried and convicted of second-degree murder. In determining whether there was sufficient evidence to sustain the conviction, we review the evidence in a light most favorable to the prosecution. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), modified 441 Mich 1201 (1992). We determine whether a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Id.
Looking at the evidence in a light most favorable to the prosecution, I would conclude in People v Baker that there was insufficient evidence to sustain the conviction. Just as in Goecke, the evidence revealed that defendant was intoxicated, was speeding, and ran a red light. However, there was insufficient evidence that defendant subjectively knew that the natural tendency of his actions would likely result in death or great bodily harm to another person. Therefore, I would affirm the Court of Appeals judgment in this case, as well.
For the same reason stated in my analysis in Goecke, I would likewise not find sufficient evidence to sustain the second-degree murder conviction of Baker under an objective standard.
m. CONCLUSION
In order for a defendant to be charged and convicted of second-degree murder when he drives while intoxicated and causes the death of another, I would hold that the prosecutor must establish that (1) the *489defendant was subjectively aware of the dangerous nature of the act involved, and (2) the natural tendency of the act was to cause death or great bodily harm.
In Goecke and Baker, I would find that the prosecution did not meet its burden. Therefore, I would affirm the decisions of the Court of Appeals in those cases.
Brickley and Cavanagh, JJ., concurred -with Kelly, J.See also Woods, supra at 627.
See also People v Bailey, 451 Mich 657, 668; 331 NW2d 707 (1982). Each definition attempts to describe the common-law term “depraved-heart murder.” See LaFave & Scott, Criminal Law (2d ed), § 7.4, p 617.
Perkins gives the example of a man who wants to destroy property by exploding a bomb in a store. He realizes that there is great danger that someone will be killed. He hopes it will not happen. After taking precautions, he sets off the explosion. A person is killed. Perkins concludes that this is homicide with malice, and therefore murder. Carrying a bomb into a store, knowing it to be dangerous, where death results, is murder. From this example, one can conclude that the actor must subjectively know that his actions are dangerous and that the natural tendency of the danger is death or great bodily harm.
452 Mich 231; 551 NW2d 656 (1996).
228 Va 273, 278-279; 322 SE2d 216 (1984).
197 Kan 427, 429-430; 417 P2d 273 (1966).
The court noted that defendant did not have a grudge, did not threaten anyone, was not speeding and was only slightly intoxicated.
578 SW2d 654, 655-657 (Term Crim App, 1978).
30 Cal 3d 290, 293-297; 637 P2d 279 (1981).
In her law review article, White quotes Hingson, Prevention of alcohol-impaired, driving, 17 Alcohol Health & Res World 28 (1993). From his studies, Hingson estimates that one drunk driving arrest occurs for every “300 to 1000 drunk-driving trips.” From these statistics, White concludes that most incidents of drunk driving do not result in injury.
“[I]t is a basic premise of Anglo-American criminal law that the physical conduct and the state of mind must concur." LaFave & Scott, supra, § 3.11(a), p 268.